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After filing two unsuccessful versions of its complaint, CAIR has filed yet another amended complaint that asks federal Judge Colleen Kollar-Kotelly in Washington, D.C., to bar the Gaubatzes and anyone related to their effort from publishing the documents and recordings obtained in the undercover operation.

CAIR interpreted the judge's order to return all copies of the documents as a demand to also return "copies published in the book," according to a Joint Status Report filed April 22 in federal court in Washington, D.C.

Horowitz, a frequent television legal analyst based in the San Francisco Bay area, has teamed with two other high-profile lawyers in the case. Bernard Grimm, in Washington, D.C., is a regular commentator on the Fox News Channel, CNN and Court TV. Martin Garbus, in New York City, is perhaps the country's best known First Amendment lawyer.

First Amendment chill

Horowitz believes CAIR knows it can't win the case, but he cautioned that the Saudi-funded group "can chill the First Amendment by making it so expensive to speak against them that no one can challenge them."

Garbus has been at the center of numerous groundbreaking and highly controversial First Amendment cases over the past five decades, from Daniel Ellsberg's battle over the Pentagon Papers during the Vietnam War and Lenny Bruce's famous obscenity charges to radio host Don Imus' lawsuit against CBS after he was fired for his remarks about the Rutgers women's basketball team.

Martin Garbus

In the 1980s, Garbus represented author Peter Matthiessen in a libel suit that stopped publisher Viking from subsequent paperback and foreign publications of the book "In the Spirit of Crazy Horse." South Dakota Gov. William Janklow and an FBI agent – who claim they were falsely portrayed in the book – tried to stop publication in three states, waging an eight-year litigation in which booksellers and book buyers were threatened. Janklow called stores and warned them of huge damage suits if they put the title on sale. Many terrified store managers removed the books, but Garbus and Matthiessen prevailed in court.

"Libel suits are the vehicle for this censorship, and they can be just as effective as government injunctions or physical threats," Garbus wrote in the afterword to the re-publication of Matthiessen's book in 1992.

"Even if lawsuits ultimately fail in court, they can be deadly," Garbus wrote. "The cost, time, and harassment value of extensive litigation can compel publishers and authors to delete controversial passages from books critical of government officials and their policies."

Garbus represented film director Spike Lee when a lawsuit charging copyright infringement threatened to stop the release of the 1992 feature "Malcolm X," which starred Denzel Washington as the slain black leader. Lee's use of 45 seconds of the well-known footage of the confrontation between Rodney King and Los Angeles police officers was challenged by the plumber who captured the chase on video, George Holliday.

Holliday claimed Lee knowingly negotiated a licensing agreement with a party who had no authority to grant it, the Los Angeles Times reported at the time. The filmmaker, in turn, accused Holliday of extortion, alleging he wanted more than the $50,000 agreed on for use of the tape.

Garbus argued in court documents that eliminating the King footage "would destroy the artistic integrity of Lee's motion picture." The attorney, the Times reported, contended that the significance of the tape as a record of "one of the most shocking and dramatic moments in the history of race relations in America" precluded Holliday on free speech grounds from copyrighting the footage. "There is simply no other way for Spike Lee to use the fact – or idea – of the Rodney King beating without using the videotape," Garbus said in court documents.

Similarly, in the "Muslim Mafia" case, Garbus believes Americans have an interest in exposure of the CAIR documents, because they are relevant to federal law enforcement officials' concerns about the group's ties to terrorist operatives that threaten the nation's security.

Garbus has said the Gaubatz lawsuit has similarities to his defense of legal author and CNN commentator Jeffrey Toobin, who allegedly violated a confidentiality agreement with Iran-Contra investigator Lawrence E. Walsh in the early 1990s when he published a book about his experience as a member of the prosecution team. Garbus won the case on First Amendment grounds.

CAIR alleges Chris Gaubatz signed a confidentiality agreement when he worked as an intern for six months, but Gaubatz denies it, and CAIR reportedly says it has no copy of any agreement.

The group alleges it suffered damage after the Gaubatzes obtained access to CAIR internal documents under false pretenses and made recordings of officials and employees without consent.

Horowitz argues the complaint does not list any specific damages done to the organization by "Muslim Mafia." He believes CAIR's failure to state damages – other than those protected by the First Amendment – provides Judge Kollar-Kotelly with the basis for dismissing the case.

Regardless of how she rules, the delay of more than one year in her decision is a "clear refusal to ban speech" immediately, as CAIR desires, Horowitz asserts.

Posing as a Muslim, Chris Gaubatz gathered some 12,000 pages of documents, which were meant to be shredded, while serving as an intern at CAIR's national office in Washington, just three blocks from the U.S. Capitol building. Information gleaned from the documents was published in "Muslim Mafia," which demonstrated CAIR's connection to the Muslim Brotherhood, the group that spawned al-Qaida and Hamas and stated in writing its intent to put America under Islamic law and the authority of the Quran.

In the lawsuit, however, CAIR, a self-described Muslim civil-rights group, does not defend itself against the book's claims.

'Subverting the process'

Kollar-Kotelly is considering CAIR's motion to file an amended complaint after the first one failed to gain traction. The Gaubatzes' legal team, meanwhile, has filed a motion to dismiss the case, pending Kollar-Kotelly's ruling.

In April, however, before the judge decided on the second complaint, CAIR attorney Nadhira Al-Khalili informed the Gaubatzes' lawyers that CAIR planned to file yet another amended complaint that added causes of action based on "newly discovered information."

Horowitz has said he hopes the judge will dismiss the first complaint and then determine whether the second and third are any different. If there is no difference, Horowitz has explained to WND, she can reject CAIR's request to amend the complaint and then throw out the case.

Responding in a letter dated April 7, Horowitz told Al-Khalili that the request for a motion to amend is another attempt by CAIR to "subvert" the legal process already in motion.

Horowitz warned Al-Khalili that any "attempt to circumvent the normal process" of the Gaubatzes' motion to dismiss and CAIR's motion to amend is "simply a further tactic to prolong this frivolous and harassing litigation."

IMPORTANT NOTE: The CAIR legal attack on WND's author is far from over. WND needs your help in supporting the defense of "Muslim Mafia" co-author P. David Gaubatz, as well as his investigator son Chris, against CAIR's lawsuit. The book's revelations have led to formal congressional demands for three different federal investigations of CAIR. In the meantime, however, someone has to defend these two courageous investigators who have, at great personal risk, revealed so much about this dangerous group. Although WND has procured the best First Amendment attorneys in the country for their defense, we can't do it without your help. Please donate to WND's Legal Defense Fund now.